JUDGMENT 1. - All the above seven appeals have been filed against the order of the Tribunal dated 19.4.1990 wherein the claim applications of the appellants were dismissed. The claimants were the legal representatives of the deceased persons in some of the claim applications whereas in others the injured had filed claim applications. For the reasons that same and similar facts of law are involved, the matter is being decided by a common judgment. 2. Misc. Appeal No. 352/90, 353/90, 349/90, 361/90 and 666/90 arise out of the claimants who were injured. Civil appeal No. 360/90 had been filed by the injured for claiming compensation for himself and also because of the death of his wife wherein 359/90 had arisen out of the claim application wherein the wife, two sons and one daughter of the claimant had died in the accident. 3. An accident had taken place on 9.5.1981 when the deceased and the injured were travelling in the truck No. RRM 6825 from village Nayapura to village Gumanpura. According to the claimants the accident had occurred because of the rash and negligent driving of the driver Kishan Kumar and because of the high speed of the truck which could not be controlled by the driver, the truck turned turtle with the result very serious injuries were caused to the passengers and some of them had also died. Different amounts had been claimed by the claimants in regard to medical expenses, compensation for dependency, shock and pains etc. 4. Before the Tribunal the respondents in the claim application had taken a defence in the reply filed by them that the vehicle was being used un-authorisedly and for the purpose for which the vehicle was not meant and, therefore, because of the illegal use of the vehicle by the driver, neither the owner of the vehicle nor the Insurance Company was liable. Common issues were framed in regard to entitlement of the compensation, about the rash and negligent driving of the vehicle and also whether the vehicle was insured with the respondent Insurance Company and whether the Insurance company was liable for compensation and also whether the passengers were allowed to use the vehicle without the permission of the owner of the vehicle etc. 5. 5. On the issue about the rash and negligent driving of the vehicle, it was found that the accident had occurred because of the rash and negligent driving. 6. However, the Tribunal had come to the finding that on the date of the accident the vehicle was insured with the respondent Insurance Company. It was found by the Tribunal that the truck was loaded with cement bags. It was further urged before the Tribunal that even if the claimants were travelling in the truck after paying the fare, they cannot be treated as passengers as envisaged under Section 95 of the Motor Vehicles Act and, therefore, none of the respondent is liable to pay any compensation. Reliance was placed on the Full Bench decision of this court Smt. Santra Bai v. Prahlad & ors., reported in 1985 RLR 643 . It was found by the Tribunal that in view of the judgment of the Full Bench (supra), wherein it had been held that where the passengers were travelling as a gratuitous or travels at its own risk, in that situation the insurance company is not liable. It was further observed that where the passengers travel in the goods vehicle for the security of goods, in that situation the insurance company shall be liable to pay the compensation which includes the owner, master and servants of the goods. Relying on certain other judgments, the Tribunal had come to the finding that the provisions of Section 95(1) are not applicable to the goods vehicle and if the vehicle is not permitted to carry any passenger for hire or reward in that situation the insurance company is not made liable for compensation, even if any such person is travelling in the goods vehicle after making the payment of the fare. A conclusion was reached by the Tribunal that because of the reason that the passengers were being carried even on payment of the charges, but without permission of the owner, in that situation neither the owner nor the insurance company was liable for compensation. 7. However, even though after holding that the driver was negligent in driving the vehicle, no finding was given to the effect that whether the driver was liable for the compensation claimed or not. 8. 7. However, even though after holding that the driver was negligent in driving the vehicle, no finding was given to the effect that whether the driver was liable for the compensation claimed or not. 8. Counsel for the petitioner submits that the Tribunal has not properly appreciated the law laid down in Santra Bai (supra) case and also relies on the judgments in the case of Pushpabai Purshottam Udeshi & Others v. M/s Ranjit Ginning and Pressing Co. & another 1977 A.C.J. 343 United Insurance Company Ltd. v. Sukha Devi & Ors., 1995 ACJ 796, 1996 ACJ 1178 and United India Insurance Company v. Smt. Ladhu Devi & others, 1998(1) WLC (Raj.)58 . 9. In Pushpabai Purshottam Udeshi (supra) in the given facts of the case where the Manager of the company had allowed the passenger to travel with him in the car, the car was driven by the Manager, car had met an accident resulting in the death of that passenger, it was held that under the doctrine of vicarious liablility, the master was liable. The High Court had found that there was no evidence that the owner of the vehicle was aware that Purshottam was being taken as a passenger by his Manager and, therefore, the owner cannot be held liable for the tortious act of his servant. It was further found by the High Court that the car was going from Nagpur to Pandhurna on the business of the company, but it had come to the conclusion that there were no pleadings or material on record to establish that Purshottam who was travelling in the vehicle had any authority to sit in the car as the passenger. On the appeal having been filed, the Hon'ble Apex Court had come to a finding that the Manager or the driver i.e. Manager (Traffic) was driving the vehicle in his course of employment and as such owner was liable under the doctrine of vicarious liability. 10. On the appeal having been filed, the Hon'ble Apex Court had come to a finding that the Manager or the driver i.e. Manager (Traffic) was driving the vehicle in his course of employment and as such owner was liable under the doctrine of vicarious liability. 10. In the Full Bench decision of this court in Santra Bai (supra) the following principles were enunciated: "Thus taking in view the entire case law and the provisions of section 95 of the Act read with rule 133 of the Rules following principles can be deduced: (i) In case of gratuitous passengers going on joy-ride or on his own responsibility, insurance company is not liable; (ii) In case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable. This would include owner of the goods as well as his employees; (iii) the insurer shall not be liable to cover liability respect of employee of the insured in respect of the death of or bodily injury, to any such employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 if such employee is (a) engaged in driving such vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or (c) if it is a goods vehicle being carried in the vehicle; (iv) the insurer shall not be liable to cover any contractual liability." 11. The full bench had held that in case of gratuitous passengers, the insurance company was not liable; in case of passengers carried for hire or reward etc. by reason of contract of employment the insurance company is liable; the insurer was held not to be liable to cover liability in respect of employee of the insured in respect of the death of or bodily injury, to any such employee arising out of and in the course of his employment other than a liability arising under Workmen's Compensation Act; the insurer shall not be liable to cover any contractual liability. 12. However, in Santra Bai's case it had not been held that the owner of the vehicle shall not be responsiblie for the compensation because of wrongful or un-authorised act of his servant. 13. 12. However, in Santra Bai's case it had not been held that the owner of the vehicle shall not be responsiblie for the compensation because of wrongful or un-authorised act of his servant. 13. The Division Bench of Himachal Pradesh in United India Insurance Company v. Sukha Devi & Others (supra) in a case where the goods truck was carrying passengers and was being driven at excessive speed and the truck having gone out of control and dashed against a tree and overturned resulting in death of 10 passengers and injuries to many others and where evidence was produced to the effect that the said passengers had paid fare to the driver and where the Tribunal had held that the passengers were travelling in the truck with the permission of the driver on hire or reward, the contention of the Tribunal was upheld in appeal, owner and driver were held liable. It was further held that because of the reason that the insurance company had failed to prove that the deceased and the insured were gratuitous passengers, the insurance company was held to be liable. In the said case the insurance company had failed to place on record the route permit of the vehicle before the court and it was held because of the reason that the insurance company had failed to place the route permit on record to show that there was any violation of the route permit or the conditions of the route permit, the finding of the Tribunal to the effect that the insurance company was liable was held to be justified and confirmed. 14. A Division Bench of this court in United India Insurance Company v. Ladhu Devi & Ors . (supra) had held authoritatively after considering number of cases including the Full bench decision of this court in Santra Bai's case to the effect that for an accident where the death of a passenger had taken place while travelling in the truck by paying fare, the insurance company was held to be liable. (supra) had held authoritatively after considering number of cases including the Full bench decision of this court in Santra Bai's case to the effect that for an accident where the death of a passenger had taken place while travelling in the truck by paying fare, the insurance company was held to be liable. After going into the number of judgments and case laws on the point, it was held by the Division Bench that the insurance company was to prove on record that it was not covered by the permit to carry any passenger for hire and reward or there was a specified condition in the policy which excludes the use of the vehicle and the vehicle was used infact in breach of the specified condition including the condition that in goods vehicle passengers for hire or reward were not to be carried and if it is done without the knowledge of the insured, the insurer would not be liable to indemnify the insured. The Division Bench was in agreement with the judgment of Gujarat High Court in New India Assurance Co. Ltd. v. Kamlaben Sultan Singh Jadav and others, AIR 1993 Guj. 171 wherein it was held as under and our High Court agreed with the Gujrat High Court: "A Gujarat High Court Full Bench in New India Assurance Co. Ltd. v. Kamlaben Sultansingh Jadav and others reported in AIR 1993 Gujrat 171 held that insurer, in order to successfully disclaim his liability on the ground mentioned in Section 96(2)(b) of the Act of 1939 has to establish:- (i) that on the date of the contract of insurance, the insured vehicle was expressly or implicitely not covered by a permit to carry any passenger for hire or reward. (ii) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward. (iii) that the vehicle was in fact used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward, and (iv) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in goods vehicle passengers for hire or reward were not to be carried. If it is done without knowledge for the insured by the driver's acts or omission, the insurer would be liable to indemnify the insured." 15. In B.V. Nagarju v. Oriental Insurance Co. Ltd., reported in 1996 ACJ 1178 where on the contention of the Insurance Company that the complainant had violated the terms of the policy by carrying passengers in goods truck and a question had arisen whether the terms of the policy by insurance company are required to be construed strictly or to be read down to advance the main purpose of contract and whether the conditions in the insurance policy interalia were that the insurance policy does not cover in case the vehicle is used for carrying passengers except employees (other than driver) not exceeding six in number coming under the purview of the Workmen Compensation Act. The Supreme Court had held that the view expressed in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC) must be read down so as to serve the main purpose of the policy, that is to indemnify the loss caused to the vehicle. Despite the fact that more passengers were being carried in the vehicle involved in B.V. Nagaraju's case, the Hon'ble Supreme Court had observed that the damage caused to the vehicle is to be indemnified. 16. No other judgment has been cited either by the counsel for the petitioner or the respondents. 17. For the above said reasons and in view of the law laid down by the above authorities, I am of the opinion that the Tribunal had erred in law in rejecting the claim of the claimants appellant in toto. The tribunal was duty bound to find if the evidence was led before it by the insurance company over the conditions of the route permit or the conditions of the policy and whether there was any violation of the conditions of the permit or the policy. However, after having given the finding to the effect that the truck was being driven rashly by the driver, it cannot be said that the driver was not liable or owner was not liable on the doctrine of vicarious liability. The judgment of the Tribunal cannot be upheld and, therefore, is likely to be set aside. 18. For the reasons mentioned above all the seven appeals are allowed. The judgment of the Tribunal is set aside. The judgment of the Tribunal cannot be upheld and, therefore, is likely to be set aside. 18. For the reasons mentioned above all the seven appeals are allowed. The judgment of the Tribunal is set aside. The case is remanded back to the Motor Accident Claims Tribunal, Tonk to decide the matter in question on merits and fix the liability afresh on the defaulting parties as per the evidence already led by the parties preferably within a period of three months from the date of receipt of the certified copy of this order. No order as to costs.Appeal allowed - Case remanded. *******